How Forbes Got Major Errors in Estate Planning Wrong - Part II

On behalf of Braverman Law Group, LLC posted in Estate Planning on Monday, June 2, 2014.

Online or DIY Rather Than Professionals

There are dozens upon dozens of websites that will profess to offer you just the right discounted estate planning documents... Internet sites can provide you with documents but no actual advice that fits you in the context of your specific financial and personal life. What happens when the laws change? Does the document create an unnecessary tax if the state and federal law diverge substantially? Also, use an experienced estate attorney. Forbes.com

Cheap Documents End Up in Court

When I litigated wills and trusts in California, almost every case was over a will or trust that had been created either online or with an attorney who did not focus in the area of estate planning. That's because it's very easy to create ambiguity - language that could be interpreted more than one way so that both sides of a lawsuit were convinced they were right - and had a shot at convincing a judge of the same. Not only did these suits eat into the size of the estatewith attorneys fees (for both sides), court fees and costs, and fees for mediators, expert witnesses and others, but they permanently destroyed family relationships between the litigating parties.

The Poor Quality of Online Plans and the Negligence in Some Attorney-Drafted Plans

I've seen online plans that were missing the healthcare document that makes all of the others work. I've seen online trusts that were so short that they practically demanded people litigate over the missing language. I've seen plans drafted by well-meaning attorneys that focused on civil litigation or business transactions to the exclusion of more everyday and likely occurrences. I've even seen "attorney-drafted" documents that obviously came from some document bank and that the attorney didn't bother to improve on; what their clients could have gotten for themselves online.

How Much Experience is "Experienced"?

So, while Forbes was right on this one, I'd take it one step further. I'd say "use an experienced estate planning attorney who doesn't practice in other areas of the law. And by experienced, we mean an attorney who has been focusing on estate planning for at least 5-10 years."

Why Does Experience Matter?

Why do I think experience is important? (After all, everyone has to start somewhere.) While I agree, everyone needs their start somewhere and I was once an inexperienced attorney too, you just don't know how the inexperienced attorney is compensating for his or her lack of experience. Are they being mentored by a much more experienced attorney or are they going it alone with nothing but books as company? You don't want to be the person or family they make their mistakes and learn on. Estate planning is, more than many other areas of the law, a subtle craft, where even a slight change in wording can have big consequences.

Aren't Inexperienced Attorneys Using the Same Law as Experienced Attorneys?

It's also an area where no one person can read every single pertinent change in the law and still have time to see clients. So, experienced attorneys rely on their colleague's sub-areas of expertise to learn what they need to know about specialized areas within estate planning. For example, I have been a contributor to my friends in special needs planning. I've spoken nationally on the topic and co-founded the Academy of Special Needs Planners. Those attorneys who know me can call me up and ask a question. Likewise, in other areas, I rely on colleagues, like Natalie Choate and Rod Goodwin, for example, in retirement asset planning. (The tax laws around planning for retirement assets were laid out by Congress several years ago but the IRS keeps "refining" them with "Private Letter Rulings" (aka PLRs). Thank goodness I can rely on my friends and I don't have to read every single one of those PLRs!) New attorneys don't yet have those relationships with experienced knowledgeable colleagues in place.

How Do You Find Our About An Attorney's Experience?

I don't think any of the bad examples I gave you at the beginning of this article came from attorneys who had been practicing exclusively in the trusts, estates and probate areas for at least 5 years. How can you find out how long an attorney you're considering has been practicing in the trusts & estates area of law? The year an attorney graduated from law school is one clue. You probably don't know their law school so your next best source is the year they were admitted to the bar. (You can get that information from the Colorado Supreme Court by typing in the attorney's name. But I must warn you that there are some exceptions, like me. I've been practicing since 1997 but in Colorado only since 2010 so the CO website will be misleading for me if you don't know about my CA years. Similarly, Bennett has been here for more than 9 years but if you look him up on the CO site you'll underestimate his years of practice because you won't know about his Florida years. That's why I prefer looking at the attorney's LinkedIn profile at www.linkedin.com. There, you can usually learn when and where they graduated and what they've done since then.

What About An Attorney Experience in Trusts & Estates in Particular?

Now, just because an attorney's been in practice for 5 years doesn't mean they've practiced in the trusts & estates area for that entire time. You can look for clues... Does their website blog go back at least five years? If you look at their LinkedIn professional history, have they been speaking and attending advanced courses in trusts & estates for at least 5 years? A great way to know is by referral. If someone recommends an attorney to you, ask them: "do you know how experienced this attorney is in drafting estate plans?" If all else fails, don't hesitate to ask the attorney herself or himself! Just ask, "How long have you been writing estate plans?"

Forbes's Score?

So I give Forbes partial credit for this one and acknowledge that they may not have been able to give the more lengthy and nuanced answer due to their space constraints. That's why blogs like this exist!

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